UPDATE December 6, 2020
The Michigan Court of Appeals has called our case for Tuesday, December 8, 2020, at 11 am. We are case #13.
You may watch the proceedings LIVE at the Court of Appeals' YouTube Channel here:https://www.youtube.com/c/MichiganCourtofAppeals
We filed a motion for oral argument on November 24, and after the State objected, the Court granted us oral argument on November 30. The attorneys for the Board of State Canvassers then changed their minds and filed their own motion for oral argument, and the Court granted 10 minutes oral argument for them as well.
Update September 19, 2020
As of yesterday, it is now too late for the Michigan Court of Appeals to act in time to place us on the 2020 ballot. Our case has not yet been heard by the court, having been successfully delayed by the State of Michigan's Attorney General.
We are still in the fight for the 2022 ballot!
On August 26, the State's brief was due. They had been given the regular amount of time to file a brief--35 days--and they did not file. The next day, untimely, they requested of the court to file a brief late, asking for an additional 28 days. Granting that relief would definitely delay us past the point of not being able to be on the 2020 ballot. We filed an objection. The court didn't even rule on the issue, but on Sept 2, the State filed a brief and appendix. The State still lies about the "duplicate" signatures (and provides the proof in the appendix, Exhibit C).
The motion to strike was denied by the court, and the court allowed the State's extended time and brief in the record and considered it "timely."
So now we wait for the Court to decide the case.
Update July 30, 2020
On July 30, the Court of Appeals issued two orders, not allowing us to file the reply pointing out the State's gross lie about the "duplicate" signatures, and denying our renewed motion for reconsideration.
Order denying renewed motion, July 30, 2020
Order not allowing our reply brief to be filed, July 30, 2020
Now the State of Michigan will have 35 days to file its reply brief, further running out the clock on our campaign getting on the 2020 ballot. We expect the State, which brazenly re-asserted that their own unlawful actions denying our petition sheets at the door in 2018 were not unlawful (when the Court of Appeals ruled that they were), to take the entire 35 days.
This pushes us further toward the deadline by which all decisions must be done in order to get on the 2020 ballot. Such an outcome was what the Court of Appeals ruled would "punish petition sponsors and the electorate for unlawful actions by election officials."
The case and our challenge to the 180-day signature gathering law are still pending despite the window available for the court to provide a remedy in time for 2020.
Updates July 28 and 29, 2020
On July 28, the State filed a reply opposing the Committee's renewed motion to expedite the case, even though the court's own rules make any elections case a priority on the calendar. In its brief, the State, for the third time, repeated a lie that the Committee's chairperson and one committee attorney submitted "duplicate" signatures of their own, and went on to assert that this was an indicator that the Committee's entire 271,000 signatures were likely flawed.
Twice before (in the Supreme Court filings and Court of Claims filings), the Committee wrote in reply briefs proving their allegations false.
For one thing, it is plainly apparent that the signatures in question are not duplicate at all, but merely one set of signatures were crossed out with a line, the exact way the Secretary of State instructs committees to cross out signatures that are not being submitted.
The State's reply brief and exhibits (where you can see the petitions cited) are below:
State's Reply in Opposition to Renewed Motion to Expedite, July 28, 2020
State's Exhibits, July 28, 2020 (**See the State's own exhibit to view petitions which clearly show that signatures are NOT duplicate)
The Committee to Ban Fracking's replies to that are here, where again the Committee had to correct the court record:
Update July 27, 2020
Late last Friday, the court denied our motion for expediting, but granted our motion for immediate consideration, and asked for more detail in a new motion.
Today we filed the following renewed motion to expedite our appeal, and a new "immediate consideration" motion to support that motion.
Committee's Renewed Motion to Expedite Appeal, July 27, 2020
Exhibit attached to Renewed Motion (May 1, 2020 letter from LuAnne Kozma to SOS, Board of State Canvassers and Director of Elections urging prompt action by election officials).
Update July 22, 2020
Judge Murray dismissed our case in the Court of Claims on Monday, July 20.
Today, we filed an appeal in the Michigan Court of Appeals. We also filed a motion for immediate consideration.
Brief of Appellant (Committee to Ban Fracking), July 22, 2020
Plaintiff-Appellant's Appendix, July 22, 2020
Motion for Immediate Consideration, July 22, 2020
(Second) Motion for Immediate Consideration of previously-filed "motion for immediate consideration" (which court is treating as a motion to expedite), filed July 22, 2020
Judge Murray's July 20 order dismissing the case in the lower court, can be found in the above Plaintiff-Appellant's Appendix, Exhibit A.
Update July 16, 2020
Late last week on July 10, Judge Christopher Murray was re-assigned to our case. During the entire week nothing was done by Judge Cynthia Stephens.
On Monday July 13, Murray ordered the State attorney general to respond by Wednesday, and the Committee to Ban Fracking to reply in less than 24 hours after the state filed its brief.
Judge Murray's order, July 13, 2020
Update July 6, 2020
We filed a new lawsuit today in the Michigan Court of Claims after the state Supreme Court declined to rule. This is now our fifth lawsuit to get on the ballot. We are seeking a declaratory judgment on the law restricting signatures to 180-days, and an injunction or TRO for the court to order the Board of State Canvassers to canvass all of our signatures by July 26, the deadline for getting on the ballot in 2020.
Committee to Ban Fracking in Michigan v Board of State Canvassers (Case # 20-000125-MM)
Exhibit A - BOE Preliminary Staff Report, updated, 6/3/2020
Exhibit B - Media reports of origin of 180-day statute, 1972-1974
Exhibit C - Attorney General Opinion re 180-day statute, 8/13/1974
Exhibit D - Canvasser meeting transcript, 3/24/2016
Update July 5, 2020
Late on July 2 before a state holiday and the holiday weekend, the Michigan Supreme Court declined to rule on the case.
See the one-page order here.
Update June 29, 2020
The Committee filed a reply brief in response to the State's motion and brief on June 27, 2020.
Exhibit A: Court of Appeals ripeness decision, 3-14-2017
Update June 23, 2020
The State of Michigan filed a reply brief and also, a motion for summary disposition of the case.
Motion for Summary Disposition, 6/22/20
Exhibit A - Committee to Ban Fracking in Michigan v SOS, Court of Appeals, 4/2/20
Exhibit B - BOE Preliminary Staff Report and attachments, 5/19/20
Exhibit C - Kozma, Boal signatures, 2/29/16 (signatures of 5/22/15 crossed out)
Exhibit D - BOE Preliminary Staff Report, updated, 6/3/20
Exhibit E - Initiatives and Referenda, 1986 - 2018
Exhibit F - Michigan Comprehensive Cannabis Law Reform Committee v SOS, Court of Claims, 4/23/16
UPDATE JUNE 10, 2020 (1:30 pm)
We filed a complaint today in the Michigan Supreme Court appealing the Board of State Canvassers' decision on June 8 declaring our petition insufficient due to MCL 168.472a, the 180-day signature gathering law, and challenging the constitutionality of that law. Our case is #161453. (MCL 168.479 states the jurisdiction for such an appeal is the Supreme Court).
Committee to Ban Fracking in Michigan v Board of State Canvassers, filed June 10, 2020
We also filed a Motion to Expedite in the Supreme Court. Afterward, we were told it was not necessary because the court will already treat it with the highest priority.
Motion to Expedite, June 10, 2020
Exhibit A (Letter to Board of State Canvassers from Ellis Boal, November 15, 2018)
Exhibit B (Letter to Director of Elections and other election officials from LuAnne Kozma, May 1, 2020)
UPDATE: June 8, 2020
On June 8, 2020, the Board of State Canvassers decided in a 4-0 vote to certify our petition as insufficient according to MCL 168.472a. This Bureau of Elections Staff report provides the details and their staff recommendation. The report was originally issued May 19, 19 days after we delivered the petitions to the Secretary of State.
Bureau of Elections Preliminary Staff Report, Committee to Ban Fracking in Michigan, updated June 3, 2020
UPDATE April 2, 2020:
The Michigan Court of Appeals ruled in our favor!!
In an unanimous decision, the court reversed and remanded the lower court's decision to the Secretary of State to forward our petition to the Board of State Canvassers. It also found that we did file on time and the petition must be treated as having been filed on November 5, 2018.
"In sum, plaintiffs submitted an initiative petition that was facially compliant with all statutory requirements. The Secretary was required to pass it on to the Board for the Board o determine the validity of the petition and canvass the signatures. If the Board rejects the petition, plaintiff may seek review before the Supreme Court. See MCL 168.479."
OUR LAWSUIT IN MICHIGAN COURT OF APPEALS, Committee to Ban Fracking in Michigan v. Secretary of State, et al Case # 350161 was decided in our favor.
Click on the links below to read the briefs.
ORAL ARGUMENT will be heard in Michigan Court of Appeals on March 3, 2020. Judges Thomas C. Cameron, (presiding judge) and Douglas B. Shapiro, and Anita Letica.
UPDATE FEBRUARY 25, 2020:
The Committee to Ban Fracking filed a Supplemental Authority to supplement the record, February 23, 2020:
Committee's Supplemental Authority (February 23, 2020)
UPDATE JANUARY 12, 2020:
The Committee to Ban Fracking filed a reply to the State's response brief on December 23, 2019:
Committee to Ban Fracking's/Appellants' Reply Brief (December 23, 2019)
The State of Michigan filed a response brief to the Court of Appeals on December 9, 2019:
State's Response Brief (December 9, 2019)
UPDATE NOVEMBER 4, 2019:
Committee to Ban Fracking in Michigan filed its appeals brief in the Michigan Court of Appeals on November 4. The appendix is a separate document. See each below:
Committee to Ban Fracking's Appellants' Brief on Appeal (November 4, 2019)
Appendix accompanying Brief on Appeal in 4 downloads, below. (November 4, 2019)
UPDATE SEPTEMBER 1, 2019
A new judge, Christopher Murray, was assigned to our case. Murray dismissed the suit on July 24. See the opinion below. We appealed on August 10. Also below is a summary of our brief, which will be filed in October.
Judge Murray's opinion, (July 24, 2019)
Committee's Issues on Appeal (August 10, 2019)
UPDATE JUNE 16, 2019
A new judge, Michael J. Kelly, was assigned to our case. In late May, Kelly asked both sides for briefs on the issue of res judicata, (a term for a matter that has been decided by a court and may not be pursued further by the same parties) on whether that applies to our case. On June 11, 2019, we filed our brief, and the Defendants did the same. You can click on them directly below:
Committee to Ban Fracking's Res Judicata Brief, (June 11, 2019)
State's Supplemental Brief [about Res Judicata], (June 11, 2019)
In our brief we explain that res judicata does not apply to our current case because: our previous case in November 2018 (a mandamus case in the Court of Appeals, which was dismissed without opinion) did not involve the same parties, that case was not decided on the merits and the claim was moot by the time the court dismissed it; the claims sought in our current case could not have been resolved in the previous case; and the defendants have already waived any claim of res judicata; and, according to a 115-year old Michigan Supreme Court decision on mandamus cases, the answer is no, res judicata does not apply here.
UPDATE APRIL 26, 2019
The State of Michigan filed a reply, and the Committee filed a sur-reply to that, on April 25. At this point the case is about dismissing the case. It is not yet being heard on the merits. The State has refused to answer our complaint but instead has chosen to fight us by getting the case thrown out of court. Immediately below are the 3 most recent filings in the case:
WHAT HAPPENED: On November 5, 2018 the Committee to Ban Fracking in Michigan submitted 47 boxes containing approximately 51,980 sheets bearing approximately 270,962 signatures to the State of Michigan Bureau of Elections (under the Secretary of State) for the 2020 election.
The Bureau rejected the signatures and the Committee sued in the Michigan Court of Appeals the very next day.
That case got dismissed with no opinion on November 15, after the emergency complaint was moot.
WE SUE AGAIN: On December 27, 2018, we filed a NEW lawsuit in the Michigan Court of Claims. We have sued the Director of Elections, Secretary of State, and Board of State Canvassers.
THE STATE FIGHTS BACK: On March 7, 2019, the Defendants, this time the new Secretary of State, Jocelyn Benson, refused to settle the case and instead decided to fight us. They submitted a motion and brief to dismiss the case. (We had graciously granted them 2 extensions amounting to six weeks of extra time).
Our case # is: 18-000274MM Committee to Ban Fracking in Michigan v Secretary of State
Verified Complaint for Declaratory and Injunctive Relief (Dec 27, 2018)
Committee's Exhibits to CBFM Verified Complaint (goes with above document)
State's Motion (and Brief) for Summary Disposition (March 7, 2019)
Committee's First Interrogatories and Requests (March 21, 2019)
State's Motion to Stay Discovery (March 26, 2019)
The Committee's response (on April 4, 2019) in opposition to the State's motion for summary disposition is below, along with attachments, affidavit and motion:
Affidavit of LuAnne Kozma, (April 3, 2019)
On April 25, 2019, the Committee filed a Sur-Reply to the State's new motion (reply brief below) citing a new reason for trying to dismiss our case:
(Their filing included a copy of our lawsuit, which we excluded from the exhibits of the PDF to make a smaller file. Please download both items above to see entire case).
PREVIOUS LAWSUIT IN 2016:
** UPDATE JULY 25, 2017**
Our leave to appeal to Michigan Supreme Court was denied. Which means we must continue to collect signatures until we have all 252,523 required signatures, submit them to the State, and then file a new lawsuit to challenge the unconstitutionality of the 180-day signature gathering law. This is what the courts are telling us to do, saying essentially, we filed too soon. We don't agree with the decision. We certainly provided all the right legal arguments and facts to show that our case IS RIPE right now. But it is at this time our only course of action to a win.
We take this as a CALL TO ACTION to all volunteers to not give up. The only way we win, is if we PERSIST, collect the signatures, and win in court. The laws and court precedents are all on our side. Our case was not yet heard.
Let's WIN this and LET'S BAN FRACKING!
** UPDATE JUNE 8, 2017**
We filed a Leave to Appeal in the Michigan Supreme Court.
We filed a lawsuit on June 1, 2016 against the Director of Elections, Secretary of State, and Board of State Canvassers, challenging the constitutionality of the statute (MCL 168.472a) that imposes a time limitation on signature-gathering. Shortly thereafter, Governor Snyder signed a new version of the law making the 180-day limit absolute. The Court of Claims ruled that our case was not yet "ripe"--essentially that we filed too soon, because we have not yet submitted our signatures to the State. We, of course, argued that the case is ripe right now, because the "actual controversy" at hand is not whether we will collect all the signatures necessary, but that the State will not accept signatures older than 180 days. We took it to the Court of Appeals. That court upheld the lower court's decision. We filed a motion for reconsideration, and that was denied.
We filed a Leave to Appeal with the Michigan Supreme Court.
On July 25, 2017, the Michigan Supreme Court denied our appeal.
Therefore, the only course of action we now have is to follow what the court is saying and continue to collect all of our signatures, when we get enough signatures, file them with the State of Michigan, and
You can also look up all documents on the state court's website: courts.mi.gov. Our case # in the Court of Appeals is #334480, Committee to Ban Fracking in Michigan v Director of Elections.
Read the court filings by clicking on the documents below:
Exhibits available on request.
On June 22, the State filed a motion and brief for summary disposition:
We filed our response to their motion on July 8:
On August 8, 2016, Judge Stephen Borrello, Court of Claims, held that the case was not yet "ripe":
August 8, 2016 Decision by Judge Stephen Borrello
On September 23, 2016, Committee to Ban Fracking filed its first brief in the Michigan Court of Appeals fighting the ripeness decision:
On October 27, 2016 Appellees filed their brief:
On November 12, 2016 we filed a reply brief:
On March 14, 2017, the Court of Appeals decided the case and upheld the lower court decision that the case was not yet "ripe":
On April 4, 2017, we filed a motion for reconsideration:
On April 18, 2017 the State filed a reply to our motion:
On April 26, 2017 the Court of Appeals denied our motion for reconsideration:
On June 8, 2017, we filed a Leave to Appeal with the Michigan Supreme Court
On July 25, 2017, the Michigan Supreme Court denied our leave to appeal.